Judicial precedent

• what is judicial precedent?

  setting a precedent is when you create a rule to be followed in similiar situations in the future. judicial precedent is when judges create rules to be followed in similiar cases in the future
• what are the three latin rules which form the basis of the rules of judicial precedent?

  stare decisis

  ratio decidendi

  obiter dicta
• what is stare decisis?


  forms the basis of the rules of judicial precedent. means that when there is no existing act of parliament to follow, judges must stand by the decisions of other judges in previous similiar cases, even if they disagree with them
• what is ratio decidendi?

  the reason why the decision was made in a specific case

  this sets the precedent to be followed in later cases

  this is a binding precedent because other judges/courts are bound to follow it
• what is obiter dicta?

  other things said by the judge in the case, which did not directly relate to the reason for the decisions. these do not set a precedent but can be helpful for future judges if they are stuck when making a decisions it is called persuasive precedent.
• what happened in the R v Howe 1987?

  D and friend murdered two men. they claimed duress as they were under threat.

  ratio decidendi: they were guilty as duress is not a defence to murder

  obiter dicta: the judge suggested it cant be a defence to attempted murder either
• what are the three types of precedent?

  original precedent

  binding precedent

  persuasive precedent
• what is an original precedent ?

  there are no previous cases or acts of parliament on a topicm so it is the first time the subject has been looked at
• what is the aldred's case 1610 and hunter v chanary wharf 1998?

  alreds case 1610:you can sui in nuisance if you cant enjoy your home life because your neighbours installed a pig sty and the smell is unbearable. however you cant sue because something has restricted your view, because a view isnt a necessity
• what happened in the hunter v chanary wharf 1998 case?

  690 residents complained that when chanrary wharf was built in london it disruoted their tv signla. they couldnt sue because tv signal isnt a necessity
• what is a binding precedent?


  a rule that other courts must follow. bound b it once the precedent has been set.
• what is an example of a binding precedent?

  R v Howe, this rule stated that duress is no defence to murder- all future courts must follow this.
• what is a persuasive precedent?

  does not have to be followed by the court. judges might find it helpful when deciding cases
• what does a persuasive precedent include?

  decisions of lower courts

  obiter dicta comments

  decisions of the judicial committee of the privy council

  decisions from other countries

  dissenting judgments
• what are the decisions of lower courts?

  judges are only bound to follow the decisions of courts that are higher than them in the court hierarchy. they can overrule the decision.
• what is an example of decisions of lower courts?

  R v R 1991- decided that it was possible for a mn to be guilty of rape against his wife .
• what are obiter dicta comments?

  statements that judges include in their judgements but which do not have a direct impact on the case they are deciding at that time. they include hypothetical situations.
• what is an example of obiter dicta comments?

  R v Howe and R v Gotts. in R v Howe judges were deciding whether the defence of duress should be allowed for a charge of murder. judge decided that duress cannot be used for murder. However, they also stated in obiter dicta comments that they did not think it should be available for attempted murder either.
• what are decisions of the judicial committee of the privy council?

  highest appeal court for some commonwealth countries and overseas territories. judges oversee cases in this court. they are a powerful precedent because they are made by supreme court justices .
• what is an example of decisions of the judicial committee of the privy council?

  the wagon mound 1961. involved compensation for an oil spill and harbour fire in sydney. decision was not binding on UK courts
• what are decisions from other countries?

  courts in England and Wales dont have to follow precedents set by courts in other countries. however they look at decisions made by countries that use similiar legal systems to help them make a decison
• what is an example of decisions from other countries?

  LIster V Hesley hall 2002. a boarding school could be sued for the action of their employee who sexually abused students in the school. house of lords was influenced by the Bazley v Curry 1999 case which happened in canada.
• what is dissenting judgements?

  when the court of appeal or supreme court makes a decision, a panel of judges will hear the appeal and all judges make an individual decision with an individual written judgement. judges who don't agree are called dissenting judgements. a dissenting judgements ins a legak argument from one of the top legal minds in the country.
• what is an example of dissenting judgements?

  candler v crane, Christmas and Co 1951. lord Denning dissented on a decision regarding use of negligent statements in contract law. this decision helped decide the outcome in the Hedley Byrne v Heller 1964 case.
• what are the methods of handling precedent?

  following

  overruling

  reversing

  distinguishing
• what is following?

  the majority of thr time judges will simply follow the ecisting binding precedent
• what is overrulling?

  a court in a later case decides that a judge in the earlier case was wrong and overrules the precednet created. this can only be done by a higher court
• what is reversing?

  similiar to overruling, this happens in the same case, so a decision is reversed on appeal.
• what is distinguishing?

  the judge decides the facts of the case are sufficiently different from the precedent, that a different decision is jutified
• what is an example for following?

  shaw v DPP 1962. D created a ladies directory where prostitutes could advise their services, the outcome was guilty as the house of lords created a crime of outraging public morals. this set the binding precedent.
• what is an example of a case for overruling?

  anderton v Ryan 1985. a woman cahrged with handling stolen property as she thought the camcorder she had was stolen. she wasnt guilty as there was no evidence it was stolen.
• what is an example of a case for reversing?

  Sweet V parsley 1970.

  D rented out her house to students who smoked and grew cannabis on the property but she didnt know. The decision at the high court was guilty, the decision at the house of lords was not guilty. this shows reversing because lords reversed the high court decision due to impact on her reputation and livelihood.
• what is an example of a case for distinguishing?

  Blafour v Balfour 1919. a couple has an informal, verbal agreement whilst married for the husband to send money to his wife when he works away. outcome was this did not need to continue after they separated
• what is law reporting?

  judges find decisions of previous cases through law reports, all court of appeal and supreme court cases issue a formal judgement. this includes:

  overall decision

  binding or persuasive precedent

  can be searched via times law reports, law libraries and online law libraries
• what are the advantages of judicial precedent?

  certainty in the law

  flexibility for some judges

  consistency between cases

  saves time for judges